Alabama prepares to carry out first execution by nitrogen asphyxiation

[January 25, 2024]  By Jonathan Allen

(Reuters) - Alabama plans to carry out the first known judicial execution of a prisoner using asphyxiation with nitrogen gas on Thursday evening, a closely watched new method the state hopes to advance as a viable, simpler alternative to lethal injections.

Kenneth Smith, convicted of a 1988 murder-for-hire, is a rare prisoner who has already survived one execution attempt. In November 2022, Alabama officials aborted his execution by lethal injection after struggling for hours to insert an intravenous line's needle in his body.

Under the new protocol, which was announced in a heavily redacted form in September, officials will restrain Smith in a gurney and strap a commercial industrial-safety respirator mask to his face. A canister of pure nitrogen will be attached to the mask, intended to deprive him of inhaling any oxygen.

Alabama has called it the "the most painless and humane method of execution known to man," and says he should lose consciousness within a minute or two, and die soon after.

Opponents of capital punishment, including United Nations human-rights experts, have said the method amounts to experimenting on humans and could merely injure him without killing him, or lead to a torturous death.

Late on Wednesday, the 11th Circuit U.S. Court of Appeals denied Smith's request to halt the execution to allow his legal challenges to the new protocol to proceed. Smith is expected to challenge that decision in the U.S. Supreme Court, whose conservative majority has generally voted in recent years against delaying scheduled executions.

On Wednesday, the Supreme Court denied Smith's application in a separate proceeding to halt the execution on the grounds that a second execution attempt of any kind, after painfully botching the first try, amounts to unconstitutional "cruel and unusual punishment."

Smith's lawyers fear that the mask will not properly seal against Smith's face, allowing oxygen to seep in, delaying or even averting the moment of unconsciousness but risking serious brain injury. They have proposed Alabama instead uses a hood pre-filled with pure nitrogen, to be plunged over his head, or else to use a firing squad.

Death penalty experts also say the state has not provided enough information about how it will mitigate the danger to execution officials and others of using an invisible, odorless gas inside the death chamber.

Rev. Jeff Hood, spiritual adviser to Smith, who will be at Smith's side, had to sign a form acknowledging the risk that the execution method poses to others.

As the waiver notes, nitrogen is an invisible, odorless, tasteless gas that makes up about 78% of normal breathing air, so if the concentration of nitrogen is increased, displacing oxygen, there is a risk of unconsciousness and even death.

Kenneth Eugene Smith, convicted for a murder-for-hire committed in 1988, and who is scheduled to be executed in the U.S. state of Alabama by asphyxiation using pure nitrogen, poses for an undated booking photo at Holman Prison in Atmore, Alabama, U.S. Alabama Department of Corrections/Handout via REUTERS

U.S. states that use capital punishment have found it increasingly difficult to get drugs for lethal injections, partly because pharmaceutical companies forbid supplying them to prisons to comply with a European trade ban on goods to be used in torture or executions.

Besides Alabama, lawmakers in Oklahoma and Mississippi have approved similar nitrogen-asphyxiation execution protocols in recent years, but have yet to put them into practice.

Maya Foa, the joint executive director of the international human-rights legal non-profit group Reprieve, said the new method is "the latest effort to obscure the violence of the state taking a human life."

"The state of Alabama has tortured Mr. Smith once, stabbing him with needles for hours, and by using him as a guinea pig for a dangerous, untested new method of execution, it is torturing him again," Foa said in a statement.

Smith was convicted of murdering Elizabeth Sennett, a preacher's wife, after he and an accomplice accepted a $1,000 fee from her husband to kill her, according to trial testimony.

Eleven of 12 jurors voted to sentence Smith to life in prison, but an Alabama judge overruled their recommendation under a law that has since been abolished as unconstitutional.

Some of Sennett's relatives have said they support the execution, scheduled for 6 p.m. at Alabama's Holman Correctional Facility, and that they planned to attend.

"Why should we have to suffer?" her son Charles Sennett told the WAAY-13 news channel this month. "And some of these people out there say, 'Well, he doesn't need to suffer like that.' Well, he didn't ask Mama how to suffer? They just did it. They stabbed her multiple times."

(Reporting by Jonathan Allen in New York; editing by Diane Craft)

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